GENERAL TERMS AND CONDITIONS BIM SUPPORTERS B.V.
These general terms and conditions represent an agreement between you (the “Customer”) and BIM Supporters B.V. (the ‘Agreement’). Please read the Agreement carefully.
Latest version: April 2018
Article 1. Definitions
In these general terms and conditions the following terms shall have the meaning assigned to them below:
The reports generated, as they are or after the Customer has entered Product Data in the BIM Supporters Software Tools;
the private company with limited liability [B.V.] BIM Supporters B.V., having its registered office in Amsterdam and its principal place of business in (1076 DE) Amsterdam, Olympisch Stadion 24, registered with the Chamber of Commerce under number 68903588, its successor(s) in title, all companies and enterprises affiliated to or associated with BIM Supporters or these successor(s) in title and/or BIM Supporters Certified Consultants or any other persons or legal entities designated by BIM Supporters;
BIM Supporters Software Tools:
The online software tools of BIM Supporters, which provide an insight into the use of BIM, such as BIM Quickscan®, BIM Execution Plan Generator™, BIM Secrets, BIM Analytics, the BIM Knowledge Base and all other online software tools to be added to the Internet Portal by BIM Supporters at any moment, enabling BIM reports to be generated and knowledge to be gained by entering Product Data or otherwise;
Any legal entity or natural person which or who has an account with BIM Supporters and/or with which or whom BIM Supporters enters into an agreement or to which or whom BIM Supporters makes an offer for the provision of one or more services by BIM Supporters;
the database in which the Expert Data, the Product Data and the BIM reports generated by way of the Internet Portal with the BIM Supporters Software Tools (such as BIM Quickscans, BIM Execution plans, BIM Secrets exams, IFC datasets, and other reports) are stored;
The database containing the highly-qualified knowledge and data, entered by the experts of BIM Supporters and/or Customers, made available to Customers, on the basis of which, with the help of the Product Data to be entered by the Customer, the BIM reports are generated by way of the Internet Portal;
The BIM Supporters internet portal with the help of which a number of structured, electronic information services are provided to the Customers. This concerns structured online information in the form of software tools, enabling the Customer to enter Product Data with which BIM reports may be generated and courses and articles about BIM become available;
The data, process data, BIM data or project data entered by the Customer in the BIM Supporters Software Tools in the Internet portal, which remain the property of the Customer and on the basis of which the Customer is able to generate BIM reports;
The electronic services supplied to the Customer by BIM Supporters, being the provision by way of the Internet Portal of the agreed BIM Supporters Software Tool(s), allowing knowledge about BIM to be gained;
Obtaining, whether or not in exchange for payment, the non-exclusive and non-transferable right to the once-only use of the BIM Supporters Software tools by way of having access to the internet portal, enabling the Customer, by entering Product Data, to generate electronic BIM reports, follow courses and obtain access to articles.
Article 2. Applicability
2.1. These general terms and conditions apply to all offers and agreements made by BIM Supporters, as well as to all other obligations and legal relationships, unless expressly agreed otherwise by the parties.
2.2. The applicability of any general purchase conditions and/or other conditions, however described, of the Customer is hereby expressly rejected.
2.3. If any provision of these general terms and conditions is void or voidable, the other provisions of these general terms and conditions will remain in full force and effect. BIM Supporters and the Customer will in that case be obliged in joint consultation to replace the void or voidable provision, or have it replaced, in a manner which is as far as possible in accordance with the purpose of the void or voidable provision.
2.4. Any derogations from or additions to these general terms and conditions or to an agreement to which they apply, may be agreed by electronic means only.
Article 3. Formation and execution of an agreement
3.1. Any Transaction performed by way of the website of BIM Supporters represents an electronic agreement between the Customer and BIM Supporters. All Transactions are final.
3.2. An agreement does not come into effect until BIM Supporters has accepted it electronically and has notified the Customer thereof, or has given effect to the agreement (for example by activating the Services).
3.3. BIM Supporters will at all times be entitled to either in whole or in part refuse a Transaction, without stating reasons and without being in any way liable for any damage, for example if BIM Supporters has an indication or a suspicion that the Customer will not comply with its obligations, or payment obligations, under the agreement.
3.4. The Customer guarantees, without being so requested, that it will provide Bim Supporters with all the data and documents of which it knows or should reasonably presume that they are, or may be, of importance to the execution of the agreement. The Customer shall warrant the correctness and authenticity of the data and documents provided by or on behalf of it.
3.5. BIM Supporters is at all times empowered and entitled to either in whole or in part instruct third parties to execute the agreement. BIM Supporters is authorized on behalf of the Customer to accept any conditions applicable in the relationship between itself and the third party, or stipulated by the third party.
3.6. BIM Supporters accepts best-efforts obligations only, never obligations to achieve a result. BIM Supporters does not warrant that the Internet Portal and the Database are error-free and operate without interruptions, nor that the BIM Supporters Software Tools are at all times completely accurate. BIM Supporters furthermore cannot warrant that its Services will at all times produce a specific and worthwhile result, since this is dependent on the correctness of the data entered by the Customer and the information supplied by third parties.
3.7. Any delivery deadlines given by BIM Supporters are not binding. Failing to meet a deadline does not cause BIM Supporters to be in default, nor does it entitle the Customer to a claim for damages.
3.8. All Services are performed for the benefit of the Customer only.
Article 4. Rates and payments
4.1. Unless expressly stated otherwise, the rates mentioned in any offers, price lists and agreements are in euros, exclusive of VAT and other costs.
4.2. Unless agreed otherwise by electronic means, BIM Supporters will send its invoice for the fees due for each individual Transaction to the Customer immediately after the Transaction concerned, including the applicable taxes, and charge the Customer in accordance with the payment method selected by the Customer on the website (such as credit card, debit card), including the applicable taxes. The Customer shall itself settle any applicable, additional taxes and obligations.
4.3. All payments must be made within 14 days from date of invoice. No suspension or set-off are permitted.
4.4. BIM Supporters at all times reserves the right to change its prices for the Services. BIM Supporters is also entitled to do so after the conclusion of the agreement. BIM Supporters will inform the Customer of this without delay.
4.5. If technical problems prevent the Services from being delivered by BIM Supporters, or if the delivery of the Services is unreasonably delayed, the Customer is entitled to either the replacement of the Services or the repayment of the price paid, at the discretion of BIM Supporters. BIM Supporters will be entitled to refuse a request for repayment in the case of fraud, abuse of the rules on repayment or other manipulating conduct.
Article 5. Use of the Services, Customer’s responsibilities
5.1. The use of the Services is governed by the rules imposed in these conditions. Any other use of the Services constitutes a material breach of the agreement. BIM Supporters may monitor the use of the Services for the purpose of ensuring that the Customer observes the rules governing the use and may at any time suspend, remove, deactivate or limit or restrict the use of the Services, without notice or liability.
5.2. The Customer may not represent itself as a different person or misrepresent any connections which it has with another person or entity.
5.3. The Customer may not change or circumvent the security technologies which form part of the Services, copy or reverse engineer the BIM Supporters software tools and updates of these, attempt to deduct the source code, alter them, make derivative works from them or enter spam messages, including, but not limited to, illicit advertising or promotions.
5.4. The Customer is fully responsible for entering the correct data in the BIM Supporters Software Tools and remains the owner of the Product Data it has entered. The Customer must enter complete and correct data and make sure that the Product Data entered by way of the Internet Portal meet the specific laws and regulations applicable to the Customer.
5.5. The Customer grants BIM Supporters a worldwide, royalty-free, perpetual, non-exclusive licence for the use of the Product Data that have been entered, for the purpose of extending the Database. BIM Supporters may monitor the entered Product Data and decide to remove these, link them to other data for further analysis or process them.
5.6. The Customer may not enter illegal, deceitful or harmful Product Data, nor any confidential Product Data of third parties in respect of which the Customer has not been granted permission, a right or a licence to use these.
5.7. The Customer shall indemnify BIM Supporters and hold that party harmless from and against all costs and damage as a result of entering any Product Data in breach of the provisions of this article.
5.8. The supply of the Services does not entitle the Customer to any promotional rights of use and does not constitute any granting or waiver of rights by BIM Supporters.
5.9. The Customer shall at all times make sure that, after the BIM reports have been generated, it will keep copies thereof by way of a back-up (either on paper or in electronic form). In order to do so, the Customer is provided with the opportunity to download these immediately after the BIM reports have been generated. The risk of loss of electronically supplied services passes to the Customer at the moment of the electronic transmission to the Customer.
5.10. It is the responsibility of the Customer not to lose, destroy or damage the generated reports. BIM Supporters shall not in any way be liable for any damage sustained by the Customer due to the temporary unavailability of the Services, as a result of which – in the absence of a back-up – the Customer might not perform any of its obligations.
Article 6. Claims
6.1. Any claims with regard to the use of the BIM Supporters Software Tools and/or the generated reports and/or invoices must, together with the reasons for the claim, be electronically submitted with BIM Supporters within 14 days from date of invoice, failing which the Customer shall no longer have any rights in respect of its claim. Filing a claim does not entitle the Customer to suspend its payment obligation.
Article 7. Internet Portal, maintenance and Database
7.1. During the term of the agreement BIM Supporters will perform maintenance activities to the Internet Portal and Database and implement any adjustments and improvements to the Internet Portal and the Database automatically. The Customer is obliged to report any problems with the Internet Portal and the Database to BIM Supporters at once, by way of the link in the footer of the Internet Portal, and to provide BIM Supporters with all the information it requires in order to be able to remedy any defects.
7.2 BIM Supporters is entitled – without prior notification – to deactivate the Internet Portal and the Database or to limit their use, to the extent that such is reasonably required for maintaining or making adjustments to the Internet Portal. In such cases the Customer shall not be entitled to any compensation or payment of damages.
7.3. Maintenance work or adjustments to the Internet Portal and Database may also involve changes in relation to the existing functionalities.
The Customer hereby grants permission to BIM Supporters to store the Product Data and the generated reports in the Database and to share these with third parties for the benefit of generating BIM reports, in accordance with the Privacy Statement. At Customer’s request BIM Supporters will anonymize a stored report from the Database.
Article 8. Right of use
8.1. BIM Supporters grants the Customer the non-exclusive and non-transferable right for the benefit of performing the Transaction to use the agreed number of BIM Supporters Software Tools by way of the Internet Portal for the purpose of entering Product Data with a view to creating BIM reports and articles. Allowing the Internet Portal to be used by, or making it available to, third parties, including subsidiaries or group companies, is not permitted without the prior electronic permission from BIM Supporters. Unless agreed otherwise by electronic means, it is not permitted for the Customer to use the Internet Portal with a view to generating BIM reports in the name of, or for the benefit of, third parties. The Customer’s right of use does not extend to the source code of the software of the Internet Portal.
8.2. The Internet Portal may not be used for purposes which are in conflict with any laws and regulations. The Customer shall make sure and guarantees that the users of the Internet Portal listed by it, will not violate this provision and indemnifies BIM Supporters and holds that party harmless from and against any claims from third parties that may arise from this.
Article 9. Intellectual property rights and ownership of the BIM Supporters Software Tools
9.1. The Customer remains the owner of the Product Data.
9.2. BIM Supporters remains the owner of the generated BIM reports.
9.3. Nothing in the agreement between BIM Supporters and the Customer shall be construed as an assignment of any property rights, or intellectual property rights, to the Customer. All rights of intellectual and industrial property to the Internet Portal, the Expert Data, the BIM Supporters Software Tools and the supplied Services are exclusively vested in BIM Supporters and/or its licensors, or sub-licensors.
9.4. The name BIM Supporters, the title “BIM Supporters Certified Consultant”, the various logos and other trade marks and service marks of BIM Supporters used in relation to the Services, are trade marks or registered trade marks of BIM Supporters. “BIM Quickscan” is a registered trade mark of the Netherlands Organization for Applied Scientific Research TNO, for the use of which BIM Supporters has been granted a licensing right. The Customer shall not receive any rights or licences in relation to the trade marks, unless expressly agreed otherwise.
9.5. Without the prior electronic permission from BIM Supporters the Internet Portal and the Expert Data which have been made available to the Customer shall not be disclosed, multiplied, transferred, alienated or given on loan to third parties.
Article 10. Data, personal data and privacy
10.2. If and to the extent that, alongside Product Data, personal data are also entered by the Customer, the Customer warrants that all statutory provisions concerning the data, or personal data, to be processed by way of the Internet Portal, including in particular the provisions under or arising from the applicable privacy legislation, have been and will be strictly observed. To the extent that any personal data are managed by BIM Supporters, it will to the best of its ability make sure that those personal data are adequately secured in accordance with the latest technical developments.
10.3. The Customer shall indemnify BIM Supporters, its officers and licensors, or sub-licensors, against any claims of any kind from third parties in relation to the use of the Internet Portal, the processing of data, or personal data, or any other activities for which the Customer is responsible under the law, in the form of damages, penalties or otherwise, and shall hold those parties fully harmless.
Article 11. Suspension and termination
11.1. The agreement between the Customer and BIM Supporters ends upon expiry of the membership, or the removal of the account. At that moment the right to generate the reports will be cancelled, without the Customer being entitled to reimbursement of any amount paid. If no commencement date has been agreed, the agreement shall commence the moment BIM Supporters gives effect to the agreement by allowing the Customer to access the Internet Portal.
11.2. BIM Supporters is entitled, without prior notice of default and without being in any way liable towards the Customer or third parties for any damage or costs, and without waiving any other of its rights, to change the Services, to block access to the Services, to suspend the Services, to dissolve the agreement either in whole or in part or to terminate the agreement before the end of the term, if:
- the Customer fails to perform any of its obligations, including its payment obligations;
- the Customer has applied for a suspension of payments, has been declared bankrupt and/or has its assets seized, or if such is likely to happen;
- if the Customer acts contrary to public order or morality and is likely to harm the reputation of BIM Supporters.
11.3. If any of the aforementioned events occurs, any amounts owed to BIM Supporters by the Customer shall be due and payable with immediate effect.
11.4. Any rights and obligations under the agreement which, by their nature and purpose, are intended to survive, shall remain in full force and effect following the termination of the agreement.
11.5. If the Customer terminates the agreement prematurely, without having obtained the prior electronic permission to do so from BIM Supporters, either by giving notice or by dissolving it, or by actually cancelling it, the Customer will not be entitled to have any amounts paid reimbursed to it.
11.6. If at the moment of termination performances have already been delivered to the Customer by BIM Supporters within the context of giving effect to the agreement, those performances and the related payment obligations will not be cancelled, unless BIM Supporters has defaulted in delivering those performances. Any amounts in respect of which invoices had already been sent by BIM Supporters prior to the termination of the agreement in respect of anything performed or supplied for the purpose of giving effect to the agreement, shall remain due in full, with due observance of the provisions of the previous sentence, and become payable at the moment of termination. The above applies by analogy to performances and activities for which no invoices have yet been sent.
Article 12. Liability
12.1. The Services by way of the BIM Supporters Software Tools are provided in the state which they are in and in which they are made available (“as is”). BIM Supporters does not guarantee that the use of the Services will not be interrupted and/or that it will be free from errors, free from loss of data, viruses, hacking and other security infringements, nor does it provide any implied or explicit guarantees as to marketability, quality, suitability for a specific purpose, accuracy, uninterrupted use and compliance with rights of third parties. Any representations or advice from BIM Supporters shall never constitute a guarantee.
12.2. Without prejudice to the other exonerations contained in these general terms and conditions, any liability on the part of BIM Supporters, its directors and/or officers and licensors, or sub-licensors towards the Customer for any attributable breach, or on any other ground whatsoever, shall be limited to the amount paid out in that specific case by the insurance company of BIM Supporters, plus the amount of the excess.
12.3. If in any specific case and for whatever reason the liability insurance of BIM Supporters should not provide cover, or if the damage in question is not covered by insurance, liability of BIM Supporters shall in that case be limited to the amount charged to the Customer by BIM Supporters in the last six (6) calendar months prior to the event that gave rise to the liability.
12.4. BIM Supporters, its directors and/or officers and licensors, or sub-licensors shall never be liable for any damage to business, consequential damage or indirect damage arising from or in respect of any claim in relation to the use of the Services, including, but not limited to, any errors or omissions or any loss or damage of whatever nature as a result of the use of the Services.
12.5. Without prejudice to the above, BIM Supporters shall not be liable for any damage:
- resulting from the provision by the Customer to BIM Supporters of any incomplete or incorrect information;
- resulting from damage to or loss of information sustained during the transmission of information;
- arising from third parties gaining unauthorized access to information regarding the agreement or the Customer;
- caused by Product Data or other data from third parties involved by the Customer in the execution of an agreement, arising from loss of data or an interruption of the business operations;
- arising from the Customer’s use or inability to use the Services.
12.6. The Customer shall indemnify BIM Supporters, its directors and officers and licensors, or sub-licensors, and hold those parties harmless from and against claims from third parties due to damage that has arisen during the execution of the agreement for the Customer, for which BIM Supporters is not liable under the provisions of this article.
12.7. Without prejudice to the above, all conditions whereby liability is limited, excluded or established and which are capable of being enforced against BIM Supporters by third parties, may also be enforced against the Customer by BIM Supporters. If and to the extent that, in the execution of the agreement, BIM Supporters has made use of third parties, the Customer will never be able to enforce more rights against BIM Supporters than BIM Supporters is itself capable of enforcing against those third parties.
12.8. Except in the case of intent or deliberate recklessness, any claim for damages against BIM Supporters will be barred by the mere expiry of a period of 1 [one] year after the Customer has discovered the damage or should reasonably have discovered the damage, and in any case upon expiry of a period of 1 [one] year after a BIM report was generated.
12.9. The Customer hereby accepts the clauses of this article, which explicitly have also been stipulated by BIM Supporters for the benefit of its directors and/or officers and its licensors, or sub-licensors, as well as for the benefit of BIM Supporters Certified Consultants – if and to the extent that they make use of the Services when performing their work for the Customer. On that ground it will be possible for its directors and/or officers and licensors, or sub-licensors, as well as for BIM Supporters Certified Consultants, to independently invoke these clauses against the Customer.
Article 13. Force majeure
13.1. BIM Supporters will not be obliged to meet its obligations under the agreement, if it is unable to perform due to circumstances outside its control (force majeure). Force majeure includes, but is not limited to, interruptions in the supply of energy and internet and communication connections, loss or damage resulting from fire, theft, non-delivery and/or incomplete and/or delayed deliveries by suppliers, war and threat of war, acts of terrorism, strikes, import and export bans and epidemics.
Article 14. Other provisions
14.1. BIM Supporters may change these conditions at any moment and adopt new or additional conditions. Such changes and additional conditions enter into force with immediate effect.
14.2. If any part of these conditions proves invalid or unenforceable, that part must be interpreted in accordance with applicable legislation in such a way that the original purpose of that provision is as much as possible expressed, while the remaining parts shall remain in full force and effect.
14.3. If BIM Supporters does not enforce or exercise any provision of these conditions, this should not be construed as a waiver of that right or that provision, or of any other rights or provisions.
14.4. BIM Supporters may send you a notification regarding the Services by means of an electronic message in the Services or by sending an e-mail to your e-mail address. Notifications enter into force with immediate effect.
14.5. The Customer hereby grants BIM Supporters the right to take such measures as it reasonably deems necessary or appropriate for the purpose of enforcing and/or monitoring compliance with the agreement, including these conditions. The Customer accepts that BIM Supporters is entitled, without in any way being liable towards the Customer, to disclose data and/or information to law enforcement authorities, government officials and/or third parties, when such is reasonably deemed necessary or appropriate by BIM Supporters in order to enforce and/or monitor compliance with the agreement – including, but not limited to, the right to cooperate in legal proceedings in relation your use of the Services and/or a claim by third parties that your use of the Services and/or the Product Data is wrongful, or constitutes an infringement of the rights of third parties.
Article 15. Applicable law and court of competent jurisdiction
15.1. All agreements and any agreements arising from it or resulting from these, as well as any disputes arising from these, shall be governed exclusively by Dutch law.
15.2. Any disputes shall always be submitted to the exclusive jurisdiction of the Amsterdam district court.
This partner agreement represent an agreement between your company and you (the “Partner”) and BIM Supporters B.V. having its registered office in Amsterdam and having a place of business in Amsterdam (1076 DE), at Olympisch Stadion 24 (“BIM Supporters”). Please read the Agreement carefully.
Latest version: July 2018
BIM Supporters and the Partner will hereafter collectively be called: the “Parties”.
In the Agreement the terms stated below have the following meaning:
(A) “Partner” means the party (with Chamber of Commerce registration and VAT number) registered, or under the process of registration, as ‘certified consultant’, ‘software consultant’ or ‘research partner’, and every operator and legal successor thereof;
(B) “Partner contribution” means the compensation which the Partner is to pay to BIM Supporters per BIM Quickscan, or BIM Execution plan generated by BIM Supporters Software tools, or per BIM Supporters Software tool to be added to the BIM Supporters product range during the term of this Agreement, as further elaborated in Clause 13.2
(C) “Operator” means the employee of the Partner, who can carry out work as BIM Supporters Certified Consultant on behalf of the Partner during the term of this Agreement only after having successfully gone through the BIM Secrets e-learning education and training programme;
(D) “Formula name” means the name “BIM Supporters”;
(E) “BIM Supporters product range” means a(n) (exhaustive) number of carefully selected products and/or services, as laid down in the Manual;
(F) “BIM Supporters” means the (trade) name under which BIM Supporters approaches the business market, which name the Partner can use by means of the BIM Supporters references during the term of this Agreement;
(G) “BIM Supporters formula” means the formula developed by BIM Supporters, as described in further detail in the Manual, which formula consists, inter alia, of a specific house style, marks and other external characteristics, accessible and customer-friendly marketing & (after-)sales programmes, which formula is particularly characterised by the marketing of highly-qualified BIM expertise, BIM advice and BIM support by means of online software tools and supervision and advising by certified BIM Supporters Consultants, hereafter: ”the products and/or services”, which form part of the BIM Supporters product range, to commercial parties;
(H) “BIM Supporters software tools” means the online software tools which BIM Supporters has developed and/or selected on behalf of the BIM Supporters product range, belonging with the BIM Supporters formula, like BIM Quickscan®, BIM Execution plan generator™ and BIM Secrets and any BIM Supporters software tools to be added to the BIM Supporters product range during the term of this Agreement. A description of the BIM Supporters software tools is included in the Manual;
(I) “BIM Supporters references” means the Marks/trade names “BIM Quickscan”, “BIM Supporters Certified Consultant”, “BIM Execution plan generator”, “BIM Secrets” and all other internal and external references belonging with the BIM Supporters formula;
(J) “Partner Consultation” means the consultation body (possibly to be set by up BIM Supporters) in which BIM Supporters and the Partners are (in)directly involved, as stated in Clause 24;
(K) “Partner fee” means the yearly fee which the Partner will pay to BIM Supporters at the start as consideration for the right to be allowed to exploit the BIM Supporters formula, as elaborated in Clause 13.1;
(L) “Operator fee”: the additional fee which the Partner will pay to BIM Supporters upon the joining of an Operator as consideration for the Operator going through the BIM Secrets e-learning education and training programme and acting as BIM Supporters Certified Consultant on behalf of the Partner during the term of the Agreement;
(M) “Manual” means the online manual in which the formula characteristics and instructions of the BIM Supporters formula are described for the Partner and which manual can be altered and/or supplemented by BIM Supporters in the interests of the continuity of the BIM Supporters formula on a regular basis;
(N) “CS score” means the result achieved by the Partner in the periodic customer satisfaction surveys to be conducted by BIM Supporters;
(O) “Marks” means the (service) marks and commercial specifications which can be valued in money, including (trade) names, owned by, used, promoted and/or held in (sub)licence by BIM Supporters and/or the BIM Supporters organisation;
(P) “Establishment” means the (business) premises from which the Partner runs his business, as stated in Clause 3.1.
– the BIM Supporters organisation has developed an undeniably unique formula relating to the online marketing of the products and/or services which form part of the BIM Supporters product range for commercial customers;
– BIM Supporters is entitled to the (exclusive) use of the Marks and BIM Supporters may and will allow third parties the use of the Marks under certain conditions;
– BIM Supporters has invested considerable amounts and time in the development of the BIM Supporters formula, as a result of which it has acquired usable highly-qualified expertise in the area of the online marketing of Building Information Management (BIM) expertise, cooperation and the advising thereon and has developed various online software tools in, inter alia, the area of the execution of BIM Quickscans, the analysis of IFC data, the generation of result reports and the preparation of BIM Execution plans;
– BIM Supporters has the goal to promote the development of the BIM Supporters formula via a network of Partners who, after successfully going through the BIM Secrets e-learning education and training programme within the framework of the BIM Supporters product range, will gain access to extra online software tools to support their BIM consultancy;
– it is the intent of BIM Supporters to come to an intensive cooperation with its Partners, who operate as independent enterprises and are fully independent in their business operations, consultancy services for customers and price determination, in order to safeguard the continuity of these enterprises and the continuity of BIM Supporters and to reinforce the position with regard to existing and future competitors;
– BIM Supporters and the Partner explicitly do not seek to establish an authority relationship and do not seek to enter into an employment contract within the meaning of Article 7:610 et seq. of the Dutch Civil Code and/or under the law of any other legal system;
– the system of the BIM Supporters formula is characterised by the online offering of a uniform BIM Supporters product range, by the Partner independently and at his own expense and risk providing consultancy services to customers making use of the BIM Supporters product range, by being able to apply the same operating techniques, being able to use the same name in the form of the BIM Supporters references, being able to run a joint (inter)national marketing policy and by establishing a close business cooperation between legally and economically independent parties, based on mutual information provision and continuous supervision by BIM Supporters of the Partner or the certified BIM Consultants working at the Partner’s within the framework of this Agreement;
– an undeniable means for achieving this goal is uniform action of the Partners, which entails, inter alia, that the Partners can make use of the same (trade) name, apply the same high quality standards when using the software tools, can apply the same operating techniques, can conduct a joint marketing policy and present the same quality image;
– by means of the aforementioned uniform working method and information gathering, BIM Supporters will be able to compare sales details of the individual Partners and to give the Partners valuable advice and provide valuable services, suitable for achieving a success-oriented/result-oriented uniform exploitation of the BIM Supporters formula;
– the Partner wishes to make use of the BIM Supporters formula and BIM Supporters wishes to allow the Partner to use the BIM Supporters formula for its operations and the Partner wishes to make use of the (benefits of) said formula and the related services of BIM Supporters;
– after the Partner has successfully gone through the BIM Secrets e-learning education and training programme laid down in Clause 7(1) to become a BIM Supporters Certified Consultant, this operation right is explicitly limited to the running of a business making use of the BIM Supporters Formula from the Establishment laid down in Clause 3.1;
– Taking account of the agreements made at the start of the cooperation the Partner will endeavour to carry out his work as certified BIM Consultant making use of the BIM Supporters formula on behalf of the running of his BIM business;
– where possible BIM Supporters will further develop the BIM Supporters formula;
– the tasks and powers ensuing from this Agreement and the Manual are known to the Parties and the Parties will both perform their own tasks; and
– BIM Supporters and the Partner wish to lay down the agreements made in writing in this Agreement.
DECLARE TO HAVE AGREED AS FOLLOWS:
1 GRANTING OF RIGHT TO USE BIM SUPPORTERS FORMULA
1.1 In accordance with the provisions in this Agreement, BIM Supporters grants the Partner the right, and the Partner accepts such right, while making use of the BIM Supporters formula, to run a business in the Territory stated in Clause 3.2, from the Establishment stated in Clause 3.1.
1.2 BIM Supporters hereby grants consent for the use by the Partner of the BIM Supporters formula and related BIM Supporters references, on the understanding that the use thereof is only permitted in connection with the action as a Partner of the BIM Supporters organisation if and after the BIM Secrets e-learning education and training module has been successfully completed and the Partner has obtained the certificate: “BIM Supporters Certified Consultant” and as long as this certificate is maintained by the Partner. An overview of the BIM Supporters references currently used by BIM Supporters is included in the Manual.
1.3 The Partner hereby states to be explicitly aware that BIM Supporters and/or legal entities affiliated with it are and remain the party/parties entitled to the industrial and intellectual property rights with regard to the BIM Supporters formula and the BIM Supporters references as laid down in the Agreement and/or the Manual and that by approving the Agreement and annexes the industrial and intellectual ownership of the above-mentioned goods has not been transferred to the Partner, in whole or in part.
1.4 If BIM Supporters makes necessary changes with regard to the BIM Supporters formula and as a result thereof uses other BIM Supporters references, the Partner will also be entitled to the use thereof and, if BIM Supporters deems such in the interest of the BIM Supporters formula, will be obliged to use such.
1.5 The Partner hereby explicitly states to acknowledge the industrial property and/or intellectual property right of BIM Supporters and/or legal entities affiliated with BIM Supporters with regard to BIM Supporters references still to be developed.
2 FURNISHING OF INFORMATION
2.1 In view of the fact that with the BIM Supporters formula the results to be realised by the Partner depend to a great extent on the network and the capacities of the individual Partners, BIM Supporters explicitly does not make any forecasts to the Partner regarding the future feasibility and potential of a successful operation of his business making use of the BIM Supporters formula.
2.2 BIM Supporters has explicitly advised the Partner to carry out an independent investigation of the feasibility and the potential of a successful operation of his business. If the Partner wants further information, notes any ambiguities or incompleteness, BIM Supporters would be happy to provide further information or explanation.
2.3 The Partner is aware that the BIM Supporters organisation in its current form is a young organisation and the Partner is (one of) the first Partner(s) of the BIM Supporters organisation. The Partner is aware that for the above-mentioned reason certain parts of the BIM Supporters formula have not yet been fully crystallised, such as (but not limited to) the Manual, the introduction and training programme, the fee structure, the final product range, etc. BIM Supporters will elaborate on the aforementioned details of the BIM Supporters formula, which could entail that the BIM Supporters formula and organisation are set up differently. The Partner acknowledges this possibility and agrees hereto. If as a result hereof this Agreement were to be amended in the future, BIM Supporters will inform the Partner thereof in due time and the Partner will not withhold his consent to the changes on unreasonable grounds.
3 ESTABLISHMENT, TERRITORY AND CUSTOMERS
3.1 The Partner has the right and the obligation during the term of the Agreement to operate a business making use of the BIM Supporters formula from the Establishment it filled out during registration on the website.
3.2 The Partner will run his business from the above-mentioned Establishment, or from a location to be determined in consultation with BIM Supporters and will limit his work as BIM Supporters Certified Consultant to activities from this Establishment and will not actively recruit customers for BIM Supporters consultancy as a BIM Supporters Certified Consultant outside of the country of Establishment.
3.3 The Partner is entitled to carry out other kinds of consultancy services in the area of BIM outside of the territory. There is (for the time being) no exclusivity or exclusive territories. BIM Supporters has the right to allow third parties to use the BIM Supporters formula in the territory. BIM Supporters will not exploit this formula itself.
3.4 The Partner will continually endeavour to expand his existing customer portfolio and the number of products and/or services per customer, in such way that the number of ‘total customers’ in his portfolio is maximised. BIM Supporters and the Partner understand ‘total customers’ to be customers who procure several products and/or services from the Partner and/or BIM Supporters. Toward this end the Partner will have contact with the relevant customers on a regular basis, whereby the Partner will strive to further expand the number of customers and further expand the income with existing customers by means of up selling (products/services with a higher value) and cross selling (procurement of extra products/services).
3.5 The Partner will at latest 1 month before the end of the contract year digitally, by means of the template from the Manual, report to BIM Supporters on the customer recruiting, upselling and cross selling efforts undertaken by the Partner and the results thereby achieved.
4 INDEPENDENCE AND TRADE NAME
4.1 The Partner is an independent business who runs his business fully at his own expense and risk. The Partner is fully free in his business operations and price determination.
4.2 The Partner is bound as BIM Supporters Certified Consultant to comply with the quality requirements and working method prescribed by BIM Supporters as described in the Manual when working with the BIM Supporters software and the reports generated therefrom and advice of the Partner based thereon. The reports generated with the BIM Supporters Software tools will be reviewed and validated by BIM Supporters as described in the Manual.
4.3 The Partner is free to advise customers as he sees fit and the Partner is himself fully responsible for the quality of his advice. BIM Supporters has no insight into the follow-up advice which the Partner gives to customers.
4.4 Agreements which the Partner makes with third parties never bind BIM Supporters, but obligations will only arise between the Partner and the relevant third party. The Partner does not have the right to trade in the name and/or at the expense of BIM Supporters.
4.5 During the term of the Agreement the Partner must be registered in the Commercial Register of the Chamber of Commerce, in his own name, and this should be the same as in the ‘account‘ of BIM Supporters portal..
4.6 Partner is not entitled to register and use the addition “trading under the name BIM Supporters”. If the Partner operates his business in the form of a legal entity, the name “BIM Supporters” may not occur in the registered name of the legal entity.
4.7 The Partner will notify BIM Supporters of any alteration in the business details of the Partner during the term of this Agreement in advance in writing and in time.
4.8 If during the term of this Agreement the Partner places his business in a legal entity or possesses any independent legal personality, the Partner remains severally liable to BIM Supporters in addition to this legal entity or entity possessing legal personality for the performance of the Partner’s obligations under the heading of this Agreement.
4.9 The Partner guarantees that he will always promptly and in full perform all obligations to which he is subject pursuant to the tax and social security legislation. The Partner will furthermore see to and is responsible for acquiring all permits required by a public authority or otherwise in connection with the running of his business.
4.10 If third parties, including the Revenue Service, were to take the position in the future that there is no independent enterprise on the part of the Partner, the Partner and BIM Supporters undertake, if possible, to alter/modify the partner relationship existing between them in such way and to take the necessary measures so that the Partner will be deemed an independent enterprise by the relevant agencies within a reasonable term.
4.11 If the Partner loses his status as independent business, this can be a reason for BIM Supporters to (prematurely) terminate the Agreement with immediate effect, whereby BIM Supporters will carefully weigh up the interests.
4.12 If the failure to obtain or retain the status of independent business is not attributable to an act or omission of the Partner and the Partner and BIM Supporters do not succeed within a reasonable term in reaching agreement with the relevant agencies, the Partner has the right to (prematurely) terminate the Agreement with immediate effect, without owing any compensation to BIM Supporters.
5 MANUAL AND GUIDELINES
5.1 The Manual contains instructions relating to the business operations within the BIM Supporters organisation in general and the business operations of a business making use of the BIM Supporters formula in particular and instructions relating to working with the BIM Supporters product range.
5.2 The Manual forms an integral part of the Agreement. The Manual will be made available to the Partner in digital form.
5.3 The instructions referred to in the first paragraph relate, inter alia, to:
(a) The use of the BIM Supporters formula and the quality requirements and working method to be observed with regard to the BIM Supporters software tools;
(b) The conditions which BIM Supporters sets for the use of the BIM Supporters software tools;
(c) Promoting sales and advertising;
(d) The mandatory following by the Partner and Operator(s) of the e-learning education and training programme;
(e) The lay-out of written documents, such as the permitted use of logos and marks on letterhead, invoices, order sheets, etc.;
(f) Information and communication technology.
5.4 The Partner undertakes to follow all instructions described in the Manual and all instructions given by BIM Supporters for the implementation thereof, which instructions are only intended to offer a uniform BIM Supporters product range, to apply the same operating techniques, to follow a joint (inter)national marketing policy and a close commercial cooperation between legally and economically independent parties, based on mutual information provision in order to achieve a success-oriented/result-oriented uniform exploitation of the BIM Supporters formula. Furthermore, the Partner is fully independent in the execution of his consultancy work and in the running of his business.
5.5 BIM Supporters is explicitly permitted to make alterations to and to expand the Manual. These alterations must be reasonable, whereby BIM Supporters will carefully weigh up the interests of the BIM Supporters organisation and the BIM Supporters formula in their totality against the interests of the individual Partners. In this respect BIM Supporters explicitly refers the Partner to the provisions laid down in Clause 2 of the Agreement.
5.6 The Manual remains the property of BIM Supporters and is made available to the Partner online for the term of the Agreement. The Partner acknowledges all intellectual and industrial property rights of BIM Supporters and/or the BIM Supporters organisation, including all rights relating to (the contents of) the Manual, which acknowledgement also applies to any alterations and/or additions to the Manual.
5.7 Should there be a conflict between the Agreement and the Manual, the provisions of the Agreement will prevail over the provisions in the Manual.
6 SERVICES OF BIM SUPPORTERS, DEVELOPMENT OF FORMULA
6.1 BIM Supporters will provide the following services to the Partner, which services are further explained and elaborated in the Manual:
a. the total BIM Supporters product range available;
b. giving instructions relating to working with the BIM Supporters software and the further use of the BIM Supporters formula by the Partner and recommendations (without commitment) with regard to consultancy options for customers;
c. supervision and support in a practical and commercial sense, inter alia by the (central) use of (specialised) marketing instruments: the BIM Supporters website and Facebook page and Google Adwords, which support is fleshed out in further detail in the Manual;
d. providing the BIM Secrets e-learning education and training programme, as described in Clause 7 and in the Manual;
e. taking care of and continuing to develop the BIM Supporters formula;
f. advising on matters of sales promotion, public relations and joint advertising;
g. the making available of a database on BIM topics, including, e.g., texts for use by the Partner during BIM consultancy work; and
h. any other services which BIM Supporters deems useful and/or necessary from time to time to support the Partner, to be freely determined by BIM Supporters.
6.2 BIM Supporters will endeavour to further develop the BIM Supporters formula.
6.3 If BIM Supporters sets up a central management information system and/or sets up a BIM Supporters database for the purpose of storage in said database by the Partner of the advice which the Partner has given to customers in order to be able to be validated by BIM Supporters – if BIM Supporters were to deem this appropriate in the framework of the further expansion and optimisation of the BIM Supporters formula in the future – the Partner will fully cooperate therewith.
6.4 BIM Supporters undertakes to inform the Partner of further developments of the BIM Supporters formula and/or changes thereto, while the Partner undertakes to implement the developments and/or changes, without such being contrary to the provisions of the Agreement and provided this is not unreasonably cumbersome in general. The Partner is aware that such developments can also relate to any joint ventures with third parties, such as organising activities intended to promote sales of the products of the BIM Supporters formula.
6.5 If the developments referred to in Clause 6.4 occur, these will be included in the Manual.
6.6 Changes in the BIM Supporters formula will also be reported to the Partners and Operators in advance by e-mail.
7 INSTRUCTION, TRAINING, QUALITY AND PERSONNEL
7.1 BIM Supporters has put together a BIM Secrets e-learning education and training programme, as fleshed out in further detail in the Manual. BIM Supporters will make this e-learning education and training programme available to the Partner after the Partner has paid the Partner fee.
7.2 The Partner is obliged to successfully complete the online e-learning education and training programme referred to in paragraph 1 after payment of the Partner fee. Successfully complete means obtaining the certificate: “BIM Supporters Certified Consultant”. The related costs are included in the Partner fee.
7.3 Only personally certified staff of the Partner may be deployed by the Partner as an Operator to work with the BIM Supporters software. The Partner will see to it that the intended Operator, at the Partner’s expense, after the payment of the Operator fee, will himself also successfully complete the BIM Secrets e-learning education and training programme. Successfully complete means the Operator himself obtaining the certificate: “BIM Supporters Certified Consultant”. The related costs are included in the Operator fee.
7.4 The Partner and staff of the Partner as Operator(s), will ensure that the Partner and Operator(s) themselves satisfy and continue to satisfy the highest standards of quality, professionalism and services and will satisfy and continue to satisfy all quality standards and regulations for working with the BIM Supporters software as laid down in the Manual.
7.5 If during the term of this Agreement it becomes clear to BIM Supporters that the Partner and/or an Operator are not satisfying the quality standards and regulations for working with the BIM Supporters software as described in the Manual and is/are thereby acting in contravention of the provisions of Clause 7.4 and/or the Manual, BIM Supporters is entitled to revoke the certificate: ”BIM Supporters Certified Consultant” of the Partner and of Operator(s) with immediate effect, to block the access to the BIM Supporters Software Tools in whole or in part and/or to prematurely terminate the Agreement with the Partner by means of premature termination or dissolution of the Agreement in conformity with the provisions in Clause 18.1 under a.
8 SALES SUPPORT AND ADVERTISING
8.1 The general marketing and communication, as elaborated in the Manual, will be provided by BIM Supporters.
8.2 The Partner undertakes to fully cooperate with the implementation of the (inter)national promotion plans at local level.
8.3 The Partner is expected to also independently advertise and take sales support measures of his own. All related costs are at the Partner’s expense. The intended individual advertising activities of the Partner may never be contrary to the collective advertising and positioning of the BIM Supporters formula, for which reason the necessary advertising material will be furnished by BIM Supporters or will be approved by BIM Supporters.
8.4 BIM Supporters will keep its business relations abreast online of new developments, business cases, etc. to promote services, products and Partners.
8.5 The Partner is permitted during the term of the Agreement to make use on behalf of his business of ‘social media’ like Twitter and LinkedIn. The Partner must at all times comply with the guidelines drawn up by BIM Supporters, as these are/will be included in the Manual.
8.6 BIM Supporters has developed a website on behalf of the BIM Supporters organisation, on which website all Partners are/will be mentioned. The domain name of the website, or any name which is in any way comparable to the trade name and/or product name(s) of BIM Supporters, are explicitly reserved for BIM Supporters. The Partner will not develop a website or take a website into use on his own initiative with regard to the BIM Supporters formula. The Partner will – without prejudice to BIM Supporters’ other rights under the Agreement – transfer a domain name or name which is comparable to the trade name/product name/product names of BIM Supporters to BIM Supporters free of charge.
8.7 In order to maintain the common identity and reputation of the BIM Supporters formula and in order to protect the industrial and/or intellectual property rights of BIM Supporters, the Partner is not permitted to himself open and/or maintain a website while making use of a domain name which includes the trade name ‘BIM Supporters’ or another trade name or mark name belonging to or licenced to the BIM Supporters organisation. The Partner is entitled to open and/or maintain a website in his own name and on his website to refer to the BIM Supporters formula, on the condition that the Partner will strictly comply with the guidelines drawn up/to be drawn up by BIM Supporters. These guidelines are/will be included in the Manual.
9 MANAGEMENT AND COMPARISON
9.1 A business comparison of the BIM businesses of the Partners will enable BIM Supporters to achieve an optimal return for the BIM Supporters formula, which return can also benefit the Partner.
9.2 The Partner will regularly provide all necessary information to BIM Supporters in accordance with the guidelines set out in the Manual on behalf of proper information provision and comparison.
9.3 On behalf of the service by BIM Supporters, the development of the BIM Supporters formula and the monitoring of the performance of the Partner’s obligations to BIM Supporters, the Partner will cooperate with reviews carried out by BIM Supporters, including (comparative) quality surveys and reviews. BIM Supporters will inform the Partner in time of an intended review.
10 CUSTOMER DATA
10.1 In the framework of this Agreement the Partner will gather customer data and (office) addresses, such as, inter alia, name and address details, telephone numbers and e-mail addresses (hereafter called: “Customer Data”). The Partner is bound to agree with his BIM customers that these customer data will be shared with BIM Supporters.
10.2 Upon the use of the Customer Data the Partner will always act in accordance with the applicable legislation and regulations of European, national and relevant legal systems of the Partner’s establishment and is obliged to take all measures – both technical and organisational – to secure the Customer Data against loss or against any form of wrongful processing and is familiar with and will comply with the conditions laid down pursuant to the General Data Protection Regulation (EU Regulation 2016/679 of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data).
10.3 The Partner guarantees that all legal regulations applicable in European, national and relevant legal systems concerning the data to be processed, including, in particular, the regulations laid down by or pursuant to the applicable privacy legislation in European, national and in relevant legal systems, are and will be strictly complied with and that all prescribed notifications and other formalities are effected and the requisite consent of its customers and staff is and will be furnished. The Partner will immediately furnish BIM Supporters with all relevant information in writing.
10.4 The Partner indemnifies BIM Supporters against claims of persons whose personal data are registered or processed in the framework of a registration of personal data which is kept by BIM Supporters and/or the Partner or for which the Partner under the heading of (privacy) legislation applicable in European, national and relevant legal systems is otherwise responsible, or for claims of third parties whether or not under the heading of compensation, penalties, settlements, criminal plea agreements or otherwise and fully indemnifies BIM Supporters therefore.
11 INSURANCE TO BE TAKEN OUT BY THE PARTNER, LIABILITY AND INDEMNIFICATION, GENERAL TERMS AND CONDITIONS
11.1 During the term of the Agreement the Partner is bound to take out proper insurance and maintain proper insurance on the basis of insurance usual in the industry, including at least (professional) liability insurance.
11.2 The insurance must be taken out with an acknowledged and solvent insurance company and must at least offer insurance cover for all loss as a result of advice given by the Partner, including Operator(s), making use of the BIM Supporters formula and other (legally binding) acts and/or omissions of the Partner and/or Operator(s).
11.3 BIM Supporters is not liable to the Partner and/or third parties for the quality of the advice given by the Partner and/or otherwise the performance of agreements made by the Partner in the framework of the operations of his business with customers and/or other third parties and/or other acts and/or omissions of the Partner, including but not limited to the advice given by the Partner as BIM Supporters Certified Consultant. The Partner indemnifies BIM Supporters against (the consequences of) prosecutions, legal action, claims (for loss) and/or other actions of customers and/or other third parties in so far as these are the result of liability and/or loss arising as a result of the consultancy by the Partner and/or other operation by the Partner of his business, unless the acts and/or omissions of the Partner are the result of the non-performance, late performance or improper performance of the contractual obligations of BIM Supporters.
11.4 This Agreement, the BIM Quickscans, BIM Execution Plans to be executed by the Partner and all other agreements ensuing herefrom or which are the result hereof, are subject to the General Terms and Conditions of BIM Supporters. To limit liability risks the Partner is bound to declare the General Terms and Conditions of BIM Supporters with the limitations of liability laid down therein to apply to the agreements to be made by the Partner with his BIM clients immediately upon the first customer contact and to present these to the customer in due time before entering into the agreements.
12 BIM SUPPORTERS PRODUCT RANGE
12.1 In order to guarantee the uniformity and quality of the BIM Supporters formula, BIM Supporters put together a BIM Supporters product range. The BIM Supporters product range has been included in the Manual and can at all times be modified by BIM Supporters. The Partner states in advance to explicitly agree to a possible future modification of the BIM Supporters product range.
12.2 The Partner has the right to but is not obliged to carry the entire BIM Supporters product range and to offer it to his customers.
12.3 The Partner is aware that the BIM Supporters product range is an essential part of the BIM Supporters formula and is of great importance for the common identity and uniformity of the BIM Supporters formula.
12.4 BIM Supporters will further develop the BIM Supporters product range to the best of its insight and adapt it to changing demand and/or possibly modified legislation and regulations.
13 PAYMENTS FOR BIM SUPPORTERS
13.1 The Partner will pay to BIM Supporters an annual fee, to be paid at latest 14 days before the starting date of this Agreement, as consideration for the use of the BIM Supporters formula, the (commercial) support offered by BIM Supporters, including, but not limited to the marketing and supporting work and the making available of the BIM Secrets e-learning education and training programme for the Partner as described in Clauses 7.1 and 7.2 (hereafter called: the “Partner fee”).
13.2 In addition, during the term of the Agreement the Partner owes a fee to BIM Supporters if the Partner adds an employee as Operator during the term of this Agreement, as consideration for making the BIM Secrets e-learning education and training programme available to Operator as described in Clauses 7.1, 7.2 and 7.3 and after the successful completion thereof the Operator will be entitled to carry out work on behalf of the Partner as BIM Supporters Certified Consultant, hereafter called: the “Operator fee”.
13.3 In addition, during the term of the Agreement the Partner owes a fee to BIM Supporters of € 50 (in words: fifty euros) exclusive of VAT per BIM Quickscan; or initiated BIM Execution Plan which the Partner implements with customers by means of the BIM Supporters software; or per participant of the initiated BIM Secrets Masterclass (hereafter called: the “Partner contribution”). Every right to repayment of the Partner fee, the Operator fee and/or the Partner contribution is explicitly excluded, even if there is non-satisfying of the condition precedent if the certificate “BIM Supporters Certified Consultant” is not achieved by the Partner or Operator of if the Agreement is terminated prematurely, for whatever reason.
13.4 The Partner fee stated in paragraph 1 of this clause relates (inter alia) to the Partner right which BIM Supporters grants to the Partner and partly serves as contribution to the other costs made by BIM Supporters regarding entering into this Agreement, including the BIM Secrets education and training programme.
14 PAYMENTS FOR THE PARTNER
14.1 All services which can be provided by the Partner as part of the use of the BIM Supporters formula are elaborated on in the Manual, which includes in addition the prices recommended by BIM Supporters. This explicitly relates to recommended prices and not fixed prices or minimum prices. The Partner is entirely free to determine his own prices for the BIM consultancy services which the Partner provides to his customers.
14.2 The BIM Supporters software is offered by BIM Supporters in the form of online tools, whereby an agreement relating to the use of these software tools is made between BIM Supporters and the Partner and with regard to BIM consultancy services between the Partner and his customers. The Partner is bound when offering customers the use of the BIM Supporters software and when advising customers, to refer to the applicability of the general terms and conditions of BIM Supporters to agreements which the customers make with the Partner and to hand over a copy of these general terms and conditions to the customers before entering into any agreement and to strictly comply with the instructions of BIM Supporters. During the term of the Agreement these instructions and prices can be unilaterally modified by BIM Supporters. The applicable instructions and prices relating to the BIM Supporters product range are included in the Manual.
15.1 BIM Supporters will invoice the Partner every yearly quarter the amounts which the Partner owes BIM Supporters under the heading of this Agreement, except for the Partner fee and Operator fee which is directly owed and to be paid by the Partner at the start of the Agreement or upon the registration of every Operator, which invoice has a payment term of 14 days.
15.2 After the due date of the invoices the Partner will owe contractual interest of 1% per month over the Partner fee, the Partner contribution and other amounts owed to BIM Supporters under this Agreement, or the statutory commercial interest if higher, without further notice of default being required. If and as long as the Partner, even after proper demand subject to a demand term of 8 days, continues to fail to pay the due invoices in whole or in part, BIM Supporters is in addition entitled to block the Partner’s online access to the online member sign in and the online software tools.
15.3 All taxes levied or still to be levied at the Partner’s expense are at the Partner’s expense and risk and do not detract from the Partner’s payment obligations to BIM Supporters under this Agreement.
16 DURATION AND EXTENSION
16.1 This Agreement starts on the day of signing, or in the case of digital approval on the day BIM Supporters digitally activates the membership and allows Partner access to the Portal, for a period of one (1) year. The Partner is entitled to the rights under this Agreement subject to the condition precedent of obtaining the certificate “BIM Supporters Certified Consultant”.
16.2 The Agreement will not be automatically extended. One (1) month before the expiry of the Agreement BIM Supporters and the Partner will consult with each other on a possible extension and the conditions on which this extension will take place, whereby the basic principle will be that BIM Supporters will offer the Partner a new agreement for the fixed term of one year if:
(i) the Partner and, if applicable: Operator(s), has/have followed the update(s) of the BIM Secrets online e-learning education and training programme and again obtained the certificate “BIM Supporters Certified Consultant”;
(ii) the Partner and, if applicable: Operator(s), has/have always satisfied the quality requirements described in the Manual during the term of the Agreement;
(iii) during the term of the Agreement the Partner has used, in BIM Supporters’ opinion, sufficient marketing and sale promoting efforts including upselling and cross selling including proper reporting thereof;
(iv) the Partner has performed his other obligations to BIM Supporters properly and in time;
(v) the Partner has indicated that he is acting in conformity with the justified predominant interests of the BIM Supporters formula and BIM Supporters organisation;
(vi) with regard to commercial results the Partner has satisfied the expectations as laid down in the Commercial Year Plan to be determined annually;
(vii) BIM Supporters and the Partner reach agreement on the contents of the Commercial Year Plan for the next year;
(viii) the Partner has satisfied the guidelines relating to the minimum CS score to be obtained; and
(ix) the Partner and BIM Supporters have reached agreement on the then applicable conditions of BIM Supporters for entering into a new agreement.
If the Parties do not reach agreement on entering into a new agreement, the Agreement will automatically end as of the expiry date.
17 COMMERCIAL YEAR PLAN AND CUSTOMER SATISFACTION
17.1 With regard to the first year the Parties will draw up a Commercial Year Plan. The goal of the Commercial Year Plan is to align the commercial goals and efforts of BIM Supporters and the Partner with each other, in order to (be able to) – partly in consequence thereof – realise the Commercial Year Plan. BIM Supporters and the Partner have an obligation of endeavours to use the utmost effort to achieve their respective goals laid down in the Commercial Year Plan.
17.2 The current Commercial Year Plan is laid down in the Manual. At latest one (1) month before the end of this period BIM Supporters and the Partner will consult on the Commercial Year Plan for the following year, which Commercial Year Plan, provided the Partner satisfies the conditions laid down in Clause 16.2 and provided agreement is reached between BIM Supporters and the Partner regarding a new agreement for the following year, will replace the preceding Commercial Year Plan.
17.3 The Partner is aware that customer satisfaction is crucial for the continuity of the BIM Supporters formula. BIM Supporters will study customer satisfaction and represent it in an individual and an average CS score. The average CS score is the average score of the active Partners who are affiliated with the BIM Supporters formula, measured over a specific period. The individual CS score is the Partner’s score over the period in question. The guidelines relating to the minimum CS score to be achieved will be included in the Manual.
17.4 If the Partner does not achieve the minimum CS score as laid down in the Manual upon the three-monthly customer satisfaction survey, the Partner will be given one opportunity to bring his CS score to the requisite minimum level. If at the next three-monthly customer satisfaction survey the Partner again does not obtain the minimum requisite CS score, BIM Supporters is entitled to prematurely terminate the Agreement.
18 PREMATURE TERMINATION BY NOTICE OR DISSOLUTION
a) the Partner or, if applicable, any Operator on behalf of the Partner in the opinion of BIM Supporters, does not comply with the quality standards and regulations described in Clause 7.4 and in the Manual for working with the BIM Supporters software or quality requirements described in the Manual with regard to advising on the basis of the BIM Supporters software by the Partner to customers or with the customer satisfaction (CS) requirements and the Partner, after written demand by BIM Supporters, does not demonstrate to the satisfaction of BIM Supporters that he satisfies and will continue to satisfy these quality or CS requirements;
b) the Partner or BIM Supporters is declared bankrupt, has applied for a moratorium on payment or the Partner no longer has the right to independently carry out legally binding transactions or the “Debt Rescheduling (Natural Persons) Act” is declared to apply to the Partner or comparable measures come into force in relevant legal systems with regard to the Partner;
c) enforcement attachment is levied against the Partner as judgment debtor, which attachment is not lifted within fourteen (14) days after service;
d) the Partner or BIM Supporters has de facto terminated his/its activities without the rights under the Agreement having been validly transferred to a third party;
e) the Partner, despite the demand referred to in paragraph 2 of this clause, fails in the performance of one or more of his obligations ensuing from the Agreement;
f) during the making of this Agreement, or during the term hereof, the Partner has intentionally furnished false and/or incorrect and/or incomplete specifications or documents to BIM Supporters, or if the Partner in some other way commits attributable actions which concretely jeopardise the good name of the BIM Supporters organisation;
the other party, without prejudice to any other contractual or statutory options for terminating the Agreement, has the right to immediately prematurely terminate or dissolve the Agreement by e-mail, without judicial intervention. The above is without prejudice to the right to demand compensation from the defaulting party.
18.2 The term for presenting the demand referred to in the framework of paragraph 1 under a) and e) of this clause to be observed is fifteen (15) days, unless a shorter reasonable term ensues from the nature of the shortcoming, in which case such shorter term applies.
18.3 In the event of death of the Partner (natural person) the Agreement will be automatically dissolved.
18.4 If BIM Supporters at any time will no longer be entitled to the industrial and intellectual property rights of the BIM Supporters formula and/or the software tools, BIM Supporters has the right to prematurely terminate or dissolve the Agreement by e-mail subject to a notice period of one (1) month.
19 CONSEQUENCES OF TERMINATION
19.1 Upon the termination or dissolution of the Agreement between the Parties – whether or not prematurely – regardless of the direct ground for termination or dissolution an end will be put to the right of use by the Partner of the BIM Supporters formula and related BIM Supporters references of BIM Supporters.
19.2 The Partner is obliged within seven (7) days after the time of the termination of the Agreement to return all documents and/or goods which BIM Supporters furnishes to the Partner in connection with the performance of this Agreement, howsoever called, to BIM Supporters in the method described in the Manual.
19.3 Within 30 days after termination, each Party will provide the other Party with all necessary information relating to any fees/payments owing at the time of termination, which fees/payments will be paid or settled within that term.
19.4 The Partner and, if applicable: Operator(s) is/are obliged after the end of the Agreement to immediately cease and desist the use of trade name, marks, other elements of the BIM Supporters formula, and from BIM Supporters originating information, pictures and infographics, and from that point on to avoid anything that could create the impression that he might still be entitled to the use of the BIM Supporters formula.
20 CONFIDENTIALITY AND NON-COMPETITION CLAUSE
20.1 The Partner is subject to a full duty of confidentiality with regard to BIM Supporters in respect of all information which has come to the Partner’s knowledge in the framework of the performance of this Agreement, relating to, inter alia – but not limited to – the work of the Partner, colleague Partners and business relations of BIM Supporters and companies affiliated with BIM Supporters in the framework of the exploitation of the BIM Supporters formula. This provision remains in effect before, during and after termination of the Agreement. The Partner will also impose this duty of confidentiality on Operator(s) and other persons in his employ or who otherwise work within his company. BIM Supporters undertakes with regard to the Partner to treat confidentially any financial details of the Partner which have become known to BIM Supporters in the framework of this Agreement.
20.2 During the term of the Agreement and up to at least 5 years after termination of the Agreement, without the explicit prior written consent of BIM Supporters, the Partner will neither directly nor indirectly, in the area of BIM consultancy in which BIM Supporters works, carry out any activities, develop any products and/of formulas which are the same as, similar to and/or compete with the activities, products and/or formulas of BIM Supporters.
21 TRANSFER OF THE PARTNER’S RIGHTS
21.1 The rights granted to the Partner under the Agreement – with legal effect in relation to property law – are not transferrable other than with the prior written consent of BIM Supporters, may not be exercised by third parties without the prior written consent of BIM Supporters nor may they be encumbered or placed in any legal entity or joint venture.
22 TRANSFER OF RIGHTS OF BIM SUPPORTERS
22.1 BIM Supporters has the right to transfer its rights and obligations under the Agreement, in whole or in part, to third parties or have them exercised by third parties on the understanding that this may not jeopardise the continuity of the Partner’s business.
22.2 BIM Supporters undertakes in the above-mentioned case to stipulate in writing on behalf of the Partner, that this successor third party will perform all obligations under the Agreement.
23 INFRINGEMENT BY THIRD PARTIES AND INDEMNIFICATION
23.1 The Partner will immediately notify BIM Supporters of any infringement by third parties of the rights of BIM Supporters and the Partner, and in so far as necessary cooperate in putting an end to such infringements. BIM Supporters will take measures to put an end to such infringements, in so far as such falls under its responsibility.
23.2 The Partner will cooperate in any manner reasonably demanded by BIM Supporters in order to protect the rights of BIM Supporters in the broadest sense of the word.
23.3 The Partner will, if he becomes involved in disputes which may lead to court proceedings, in so far as they are related to his activities as the Partner, immediately inform BIM Supporters thereof and, depending on the nature of the dispute, grant BIM Supporters the right to join the proceedings.
23.4 The Partner indemnifies BIM Supporters against any claim of third parties in so far as said claim is the result of an act or omission of the Partner.
23.5 This obligation of indemnification lapses if the act or omission of the Partner is the result of late or improper performance of his contractual obligations by BIM Supporters.
23.6 BIM Supporters indemnifies the Partner against actions of third parties, which are the result of non-performance, late performance or improper performance by BIM Supporters of his obligations to the Partner, subject to force majeure. This obligation of indemnification lapses if the act or omission of BIM Supporters is the result of late or improper performance of his contractual obligations by the Partner.
24 PARTNER CONSULTATION
24.1 BIM Supporters will promote the communication, the exchange of experiences and thoughts with its Partners as well as those between different Partners and Operators. In this respect BIM Supporters will strive to have informal regional partner consultation on a regular basis. Depending on the number of Operators and the size of the Territory it can occur that this consultation takes place by means of video conferencing. Other forms of (digital) feedback are also a possibility.
25 AMENDMENT OF AGREEMENT AND NULLITY OF PROVISIONS
25.1 If altered (inter)national legislation or regulations give rise to such during the term of the Agreement, BIM Supporters will be entitled to modify the provisions of the Agreement to bring them in accordance with the altered (inter)national legislation or regulations.
25.2 If any provision under the Agreement is declared or turns out to be void or invalid or can no longer apply on the basis of changing circumstances, e.g. as a result of altered (inter)national legislation or regulations, such statement or determination will not have an influence on the other provisions.
25.3 In the event of a situation as stated in Clauses 15.1 and/or 15.2 the Parties will consult in good faith in order to make a new arrangement in this respect which represents the intention of the Parties as much as possible. In addition, it will be reviewed to what extent the amendments in the provision(s) to be amended are of influence on other provisions of the Agreement. If necessary these other provisions may be amended in consultation.
26 PENALTY CLAUSE
In so far as the contrary is not explicitly stated in the Agreement, in the event of breach of the provisions in Clauses 19.4, 20.1 and 20.2 of the Agreement, the Partner will forfeit to BIM Supporters an immediately due penalty of € 25,000 (in words: twenty-five thousand euros) per breach, as well as a penalty of € 1,000 (in words: one thousand euros) per day that the Partner continues to default on the performance of his obligations ensuing from the Agreement, without prejudice to the right of BIM Supporters to demand the actual loss suffered in all these cases.
27 DISPUTE RESOLUTION, APPLICABLE LAW AND COMPETENT COURT
27.1 In the event of a dispute, including a dispute which only one of the Parties deems a dispute, ensuing from the Agreement, the Parties will in the first instance try to reasonably resolve it between themselves.
27.2 If it has turned out to be impossible to resolve a dispute in consultation between the Parties as referred to above, on the application of either Party the dispute will exclusively be brought, with exclusion of the jurisdiction of other courts, before the District Court of Amsterdam.
27.3 The Agreement, the Manual and all agreements ensuing therefrom are governed by Dutch law.
28.1 All written notices from the Partner to BIM Supporters stated in the Agreement of a significant nature must always be sent by registered mail to:
BIM Supporters B.V.
Olympisch Stadion 24
1076 DE Amsterdam
with a digital copy to:
28.2 Notices of a significant nature from BIM Supporters to the Partner will be sent by registered mail to the address of the Partner’s business as this appears in the account page of the registration in the Portal with a digital copy to the e-mail address specified by the Partner during registration on the Portal. Other notices will be sent to the e-mail address of the Partner’s business specified by the Partner during registration on the Portal.
29 SEVERAL LIABILITY
29.1 In the event the Agreement is signed by several co-signers on behalf of the Partner all obligations of the Partner ensuing from the Agreement are several obligations.
29.2 If the Partner places his business in a legal entity or any entity possessing legal personality, the Partner remains personally liable to BIM Supporters for the performance by the legal entity or any entity possessing legal personality of the obligations of the Partner under the heading of this Agreement.
30 FINAL PROVISIONS
30.1 The Parties undertake to perform the Agreement in good faith and to notify each other of all relevant information with regard to the cooperation, including circumstances which (could) impede proper effecting of the cooperation.
30.2 The Agreement exhaustively contains all provisions currently in effect between the Parties and it takes the place of all prior verbal and written agreements.
30.3 The ‘DEFINITIONS’, the recitals and all attached annexes form an integral part of the Agreement.
30.4 Lastly, the Partner states to have had sufficient time to study the Agreement and to have had the possibility to seek expert advice if so desired.